State v. IrelandState v. Ireland
Rendered on January 24, 2017
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
On brief: Giorgianni Law LLC, and Paul Giorgianni, for appellant. Argued: Paul Giorgianni.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Darin K. Ireland, appeals the December 8, 2015 judgment of the Franklin County Court of Common Pleas convicting him, pursuant to a jury verdict, and imposing sentence. For the following reasons, we reverse the judgment of the trial court.
I. History
A. Factual History
{¶ 2} On October 19, 2013, appellant, his wife, Pam Ireland, his friend, Tyler Thrash, and Tyler Thrash‘s girlfriend, were at Cappy‘s Bar in Blacklick, Ohio for a fundraiser for a military combat veteran‘s organization. Between 7 and 8 p.m. on the same night, Drew Coen and his brother, Cris Coen, also arrived at Cappy‘s Bar.
{¶ 4} Louis Capodanno, the owner of Cappy‘s Bar at the time of the incident, testified that he observed appellant‘s actions before Thrash attacked Drew. According to Capodanno, immediately before the incident, appellant was “his normal self” and was not intoxicated. (Tr. Vol. III at 261.) When Capodanno witnessed Thrash assaulting Drew, he and appellant tried to pull Thrash away from Drew. Capodanno then heard Thrash say to Drew, “You wanna touch one of our women?” Appellant then asked Drew, “Whose woman did you touch? You touched my woman?” (Tr. Vol. III at 262.) Capodanno then moved to assist Drew. While Capodanno was moving Drew away from the building into the parting lot, appellant said, “You wanna touch one of our women?” and began hitting Drew. (Tr. Vol. III at 266.) Capodanno tried to shield Drew with his own body and received kicks and punches from appellant.
{¶ 5} Theresa Luginbuhl, a manager at Cappy‘s Bar, testified that she observed appellant assault Drew in the parking lot outside the bar. Luginbuhl ran back inside the bar to call 911. When she came back outside after calling 911, she witnessed appellant striking Drew:
[Luginbuhl]: I came out and I had called the cops and I came out and I saw [Capodanno] was on top of Drew Coen, and [appellant] was punching [Capodanno].
* * *
I saw [Capodanno] on top of [Drew], and I saw someone try to pull [appellant] off, but [appellant] wouldn‘t -- [appellant] wouldn‘t stop.
* * *
[Appellant] was still punching and probably still would have been stomping.
* * *
[Assistant Prosecutor]: So Drew -- Drew is on the ground; [Capodanno] is on top of him protecting him. What was [appellant] doing?
[Luginbuhl]: Punching, punching, trying to get to Drew but punching [Capodanno]. I mean, he didn‘t care. He was just punching. He didn‘t care what was in his way, who it was. He didn‘t care. He would have punched anyone.
(Tr. Vol. III at 237-38, 241.)
{¶ 6} Adam Joseph McMillen testified that he witnessed Thrash assault Drew. According to McMillen, he, Capodanno, and appellant pulled Thrash away from Drew. After they pulled Thrash away from Drew, Thrash ran across the parking lot, and punched Drew in the face. McMillen then heard Pam screaming and saw appellant standing over Drew punching and kicking him. McMillen testified that appellant appeared very angry and “had this tunnel vision, like when you get in a fight.” (Tr. Vol. II at 188.) McMillen witnessed appellant fall and then he stopped assaulting Drew. According to McMillen, “it was just like he was just kind of stumbling around, out of it.” (Tr. Vol. II at 167.) McMillen then helped place appellant in Pam‘s car.
{¶ 7} According to Cris Coen, around 1 a.m., he and his brother exited the bar together when he was summoned back inside to sign a receipt by Luginbuhl. He signed the receipt and then went to the restroom. Shortly afterward, he was informed that his brother had been injured. Cris testified that, at first, he did not recognize Drew because of the severity of his injuries and the amount of blood covering his face and clothing. After recognizing his brother, Cris ran into the bar to grab towels which he then used to apply pressure to the injuries to Drew‘s face.
{¶ 8} Drew testified that he drank “quite a bit” of alcohol at the bar and was “pretty intoxicated that night.” (Tr. Vol. II at 101; 80.) He recalled leaving the bar with
{¶ 9} Drew received treatment for severe injuries to his face and head in addition to pain in his knee. Dr. Mark Douglas Wells, a physician at OhioHealth Grant Medical Center, testified that when Drew arrived at the hospital, he was alert and suffering from a variety of injuries including swelling around his eyes, a broken nose, and a broken upper jaw. At the hospital, it was determined that Drew had a blood alcohol content of .3. Drew underwent three surgeries to repair the damage to his face and head. As a result of the incident, Drew suffered from chronic pain, scarring, permanent physical injuries, and psychological injuries.
{¶ 10} At trial, the defense called James P. Reardon, Ph.D., a psychologist, as its sole witness. Following the incident, Dr. Reardon performed a psychological examination of appellant. Dr. Reardon testified that it was his opinion within a reasonable degree of psychological certainty that appellant was experiencing a dissociative episode when he attacked Drew. According to Dr. Reardon, appellant‘s dissociative episode was a manifestation of post-traumatic stress disorder (“PTSD“), from which appellant suffered as a result of his experience in the Persian Gulf War in 1991. Dr. Reardon testified that as a result of appellant‘s combat experience, he had “a significant capacity for dissociation.” (Tr. Vol. III at 346.) Dr. Reardon offered the following explanation for dissociative episodes:
[Appellant‘s Counsel]: And when a person experiences what you call a “dissociative episode,” if that happens, do they have a conscious awareness of what‘s going on around them?
[Dr. Reardon]: No. I mean, a dissociative episode, by definition, is an alteration in consciousness, memory, and the ability to make kind of rational decisions. I mean, the whole point of dissociating is if you can‘t escape -- it‘s been described as dissociation is an escape when there‘s no escape * * * when you can‘t physically remove yourself.
* * *
[Appellant‘s Counsel]: Are you saying then that‘s a conscious decision to escape to this dissociative place?
[Dr. Reardon]: No. I mean, by definition, it is not a volitional experience. It‘s not something you do; it‘s something you experience.
[W]hen they disassociate [sic], when they are in a flashback, it‘s a disorientation for right here, right now because they feel like they‘re right there, right then. * * * And their reactions are automatic reactions that kind of kept them alive.
(Tr. Vol. III at 357-58; 360.) Under cross-examination, Dr. Reardon explained whether someone who is experiencing a dissociative episode is acting voluntarily or involuntarily:
[Assistant Prosecutor]: [I]n this incident, [appellant] reported having no memory of the contact?
[Dr. Reardon]: It‘s an alteration of consciousness. And then when a dissociative episode occurs, people don‘t consciously -- they‘re not consciously present at that moment.
* * *
[Assistant Prosecutor]: [I]f someone‘s disassociated [sic], you‘re saying this action is involuntary; right? They have no control over it?
[Dr. Reardon]: It‘s not a manifestation of conscious thought or awareness.
[Assistant Prosecutor]: Okay. Meaning they can‘t control it?
[Dr. Reardon]: They don‘t control it.
* * *
[A]nd they can‘t because it‘s not a product of their consciousness and decision making.
(Tr. Vol. III at 381, 387.)
{¶ 11} For purposes of rebuttal, plaintiff-appellee, State of Ohio, offered the testimony of Dennis Eshbaugh, Ph.D., a clinical and forensic psychologist. Dr. Eshbaugh stated that, based on his review of appellant‘s records, including Dr. Reardon‘s report, it was his opinion within a reasonable degree of psychological and scientific certainty that
B. Procedural History
{¶ 12} On January 22, 2014, a Franklin County Grand Jury filed an indictment charging appellant with a single count of felonious assault, in violation of
1. DEFINED. Where a person commits an act while unconscious as in a (coma) (blackout) (convulsion) due to (heart failure) (disease) (sleep) (injury), such act is not a criminal offense even though it would be a crime if such act were the product of a person‘s (will) (volition).
2. CONCLUSION. If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony (all elements of the crime charged) (any lesser included offense) [that the act was (purposely) (knowingly) committed].
Ohio Jury Instructions, CR Section 417.07 (2016).
{¶ 13} The state objected to the inclusion of the instruction. Additionally, the state argued that the defense of “blackout” was an affirmative defense for which appellant bore the burden of proof. Appellant repeatedly objected to the characterization of “blackout” as an affirmative defense. After hearing arguments, the trial court concluded that it would instruct the jury on blackout, and found that blackout was an affirmative defense. The court then issued the following instruction:
The defendant is asserting an affirmative defense known as blackout.
The burden of going forward with the evidence of blackout and the burden of proving an affirmative defense is upon the defendant. He must establish such a defense by a preponderance of the evidence.
Preponderance of the evidence is the greater weight of the evidence; that is, evidence that you believe because it
outweighs or overbalances, in your minds, the evidence opposed to it. A preponderance means evidence that is more probable, more persuasive, or of greater probative value. It is the quality of the evidence that must be weighed. Quality may or may not be identical with the greater number of witnesses.
In determining whether or not an affirmative defense has been proved by a preponderance of the evidence, you should consider all the evidence bearing upon that affirmative defense regardless of who produced it.
If the weight of the evidence is equally balanced or if you are unable to determine which side of an affirmative defense has the preponderance of evidence, then the defendant has not established such affirmative defense.
If the defendant fails to establish the defense of blackout, the State still must prove to you beyond a reasonable doubt all the elements of the crime charged.
Where a person commits an act while, as in a coma, blackout, or convulsion due to heart failure, disease, sleep, or injury, such act is not a criminal offense even though it would be a crime if such act were the product of a person‘s will or volition.
If you have a reasonable doubt whether the defendant was conscious at the time of such act, you must find that he is not guilty. If you find that the defendant was conscious, such finding does not relieve the state of its burden of establishing by the required weight of the testimony that the act was knowingly committed.
This instruction would not apply to one who recklessly or negligently became intoxicated.
Reflexes, convulsions, body movements during unconsciousness or sleep and body movements that are not otherwise a product of the act‘s will or volition are involuntary acts.
Intoxication is not an excuse for an offense.
(Tr. Vol. V at 646-48.)
II. Assignments of Error
{¶ 15} Appellant appeals and assigns the following five assignments of error for our review:
[I.] The court instructed the jury that Mr. Ireland had the burden of proving his defense, thereby depriving Mr. Ireland of his constitutional right to a jury trial under the “beyond a reasonable doubt” standard of proof.
[II.] Prosecutorial misconduct during closing argument violated Mr. Ireland‘s due-process right to a fair trial.
[III.] The cumulative effect of errors violated Mr. Ireland‘s due-process right to a fair trial.
[IV.] The judge misstated OJI 417.07 by omitting the word “unconscious.”
[V.] The judge failed to give a curative instruction when the State‘s psychology expert purported to tell the jury “what the law requires.”
III. Discussion
A. First Assignment of Error—Burden of Proof
{¶ 16} In his first assignment of error, appellant asserts the trial court erred by instructing the jury that blackout was an affirmative defense and, therefore, appellant bore the burden of proving the defense of blackout by a preponderance of the evidence. Appellant contends that by failing to properly instruct on the state‘s burden to prove all essential elements of the crime beyond a reasonable doubt, the trial court committed structural error. Importantly, we note that the state does not contest on appeal whether it was proper for the trial court to offer the instruction on blackout. Instead, the state argues only that the trial court properly instructed that appellant bore the burden of proving the defense of blackout as an affirmative defense.
{¶ 17}
(A) Harmless error. Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.
(B) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
Thus,
{¶ 18} However, if the defendant has objected to an error in the trial court, an appellate court employs a more lenient standard of review, namely the “harmless error” standard in
{¶ 20} The United States Supreme Court has recognized that ” ‘most constitutional errors can be harmless.’ ” Neder v. United States, 527 U.S. 1, 8 (1999), quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991). Indeed, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579 (1986). However, certain constitutional errors, termed “structural errors,” have been recognized to “defy analysis by ‘harmless error’ standards.” Fulminante at 309. Structural errors are defined as constitutional defects that ” ‘affect[] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.’ ” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, ¶ 9, quoting Fulminante at 310. Structural errors permeate “the entire conduct of the trial from beginning to end,” rendering the trial court unable to ” ‘reliably serve its function as a vehicle for determination of guilt or innocence.’ ” Fulminante at 309-10, quoting Rose at 577-78. As a result of the severity of their impact on the proceedings, structural errors “require automatic reversal (i.e., ‘affect substantial rights‘) without regard to their effect on the outcome.” Neder at 7; see also Perry at ¶ 17.
{¶ 21} “Consistent with the presumption that errors are not ‘structural,’ the United States Supreme Court ‘has found an error to be “structural,” and thus subject to automatic reversal, only in a “very limited class of cases.” Johnson v. United States, 520 U.S. 461, 468 (1997) (citing Gideon v. Wainwright, 372 U.S. 335 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275 (1993) (defective reasonable-doubt instruction).’ ” Perry at ¶ 18, quoting Neder at 8.
{¶ 23} In Sullivan, the United States Supreme Court found that “the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.” Id. at 278. The United States Supreme Court stated that “[i]t would not satisfy the Sixth Amendment to have a jury determine that the defendant is probably guilty, and then leave it up to the judge to determine (as Winship requires) whether he is guilty beyond a reasonable doubt.” (Emphasis sic.) Id. Therefore, “the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Id. Finally, in considering whether to apply the harmless error or structural error standard of review, the United States Supreme Court found that “[d]enial of the right to a jury verdict of guilt beyond a reasonable doubt * * * with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Id. at 281-82.
{¶ 24} Here, appellant asserts the trial court failed to properly instruct the jury regarding the reasonable doubt standard. We agree and, consistent with Sullivan, review for structural error.
2. Applicable Law
{¶ 25} Generally, criminal offenses contain two elements: the “actus reus,” or “guilty act,” and “mens rea,” or “guilty mind.” State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6301, ¶ 8 (“Generally, an offense will be defined in terms of a prohibited act accompanied by a culpable mental state, the ‘mens rea’ or guilty mind.“); State v. Hackedorn, 5th Dist. No. 2004-COA-053, 2005-Ohio-1475, ¶ 35 (“An essential element of every crime is the defendant‘s actus reus, or criminal act.“). See Joshua Dressler,
(A) [A] person is not guilty of an offense unless both of the following apply:
(1) The person‘s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;
(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the language defining the offense.
“Thus, every criminal offense is made up of (1) a voluntary act or failure to act when there is a duty and (2) a culpable mental state for each element that specifies a mental state.” Johnson at ¶ 16.
{¶ 26} Furthermore, Ohio has codified the burden of proof in all criminal proceedings.
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
Thus,
{¶ 27} The statutory authority cited for the defense at issue in the present matter, i.e., unconsciousness or blackout4 can be found in
{¶ 28} Here, blackout is not expressly designated by statute as an affirmative defense. Therefore, we must determine whether blackout relates to an essential element of the crime or is “[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”
{¶ 29} Legal scholars have recognized that the issue of whether a voluntary act is an element of a crime is an issue of considerable debate. See Joshua Dressler, Understanding Criminal Law, Sections 9.02 and 10.01 (7th Ed.2015) (“There is serious dispute regarding whether ‘involuntariness‘—claims of seizure, acts during unconsciousness, and the like—should be characterized as a ‘defense.’ “); Farrell and 4
{¶ 30} Indeed, courts have reached varying conclusions regarding this issue. See State v. Hinkle, 200 W.Va. 280, 286 (1996) (“[W]e hold that unconsciousness (or automatism) is not part of the insanity defense, but is a separate claim which may eliminate the voluntariness of the criminal act. Moreover, the burden of proof on this issue, once raised by the defense, remains on the State to prove that the act was voluntary beyond a reasonable doubt.“); State v. Deer, 175 Wash.2d 725, 741 (2012) (“While a defendant must be allowed to argue that her actions were involuntary, thus excusing her from criminal liability, we hold that it is the defendant‘s burden to prove this defense by a preponderance of the evidence.“); Polston v. State, 685 P.2d 1, 6 (Wyo.1984) (holding that “the burden is upon the defendant who raises the defense of automatism to prove the elements necessary to establish the defense; and the burden remains with the defendant throughout the trial“); McClain v. State, 678 N.E.2d 104, 107-09 (Ind.1997), quoting Baird v. State, 604 N.E.2d 1170, 1176 (Ind.1992) (” ‘Once evidence in the record raises the issue of voluntariness, the state must prove the defendant acted voluntarily beyond a reasonable doubt.’ * * * Automatism is simply a denial of one element—voluntary action—that the Legislature has required for most crimes.“); State v. Caddell, 287 N.C. 266, 290 (1975) (holding that “unconsciousness, or automatism, is a complete defense to a criminal charge, separate and apart from the defense of insanity; that it is an affirmative defense; and that the burden rests upon the defendant to establish this defense, unless it arises out of the State‘s own evidence, to the satisfaction of the jury“); State v. Weatherford, 416 N.W.2d 47, 55 (S.D.1987) (finding that “the burden of proof rests on the State to prove the defendant was conscious at the time he committed the act, or acts, constituting the offense charged” and that the defendant had only the burden of producing evidence that would raise a reasonable doubt in the mind of the jury); State v. Mishne, 427 A.2d 450, 458 (Me.1981) (“The burden is on the state to prove that the
{¶ 31} In Ohio, courts have historically characterized the defense of blackout or unconsciousness as an affirmative defense. State v. LaFreniere, 85 Ohio App.3d 840, 849 (11th Dist.1993), citing State v. Myers, 10th Dist. No. 6100 (July 14, 1959); State v. Mobley, 5th Dist. No. 2010-CA-0018, 2011-Ohio-309, ¶ 43; State v. Hinton, 8th Dist. No. 99581, 2014-Ohio-490, ¶ 27; Hackedorn at ¶ 42; State v. Singleton, 11th Dist. No. 2002-L-077, 2004-Ohio-1517, ¶ 36; and State v. Robinson, 2d Dist. No. 9547 (May 27, 1986).
{¶ 32} In Myers, the defendant was charged with “driving while under the influence of intoxicating liquor” after he drove his car through an intersection without stopping, resulting in a one-vehicle crash in which the passenger of his car was killed. Id. The defendant claimed he had no memory of going through the intersection and that “he must have gone to sleep.” Id. On appeal, the state objected to the jury instruction on blackout because it failed to account for circumstances in which the loss of consciousness was induced by intoxication, and because it failed to place the burden on the defendant of proving the defense of blackout by a preponderance of the evidence. The court relied on Lehman v. Haynam, 164 Ohio St. 595 (1956), for the following proposition: “Where in an action for injuries arising from a collision of automobiles the defense of the defendant driver is that he was suddenly stricken by a period of unconsciousness, which rendered it impossible for him to control the car he was driving and which he had no reason to anticipate or foresee, the burden of proof as to such defense rests upon such driver.” Id. at paragraph three of the syllabus. Although it noted that “the Lehman case was a civil
{¶ 33} In Robinson, the court recognized the holding of Myers for the proposition that blackout was an affirmative defense. Further, the court stated that “the defense of blackout is very similar to the defense of insanity which also has been recognized as an affirmative defense since it is based on an excuse which is ‘peculiarly within the knowledge of the accused’ for which he can be fairly required to produce evidence.” Id. Therefore, the court found that the defendant had the burden of proving blackout as an affirmative defense by a preponderance of the evidence pursuant to
{¶ 34} In LaFreniere, the court relied on Myers and Robinson to conclude that blackout was an affirmative defense. The court found that where the record contained “some credible, competent evidence supporting a finding of blackout * * * an instruction on the affirmative defense of blackout had to be given.” Id. at 850, citing State v. Payne, 104 Ohio App. 410 (10th Dist.1957).
3. Analysis
{¶ 35} We begin our analysis by examining whether voluntariness is a requirement for establishing criminal liability. As previously stated,
{¶ 36} In construing
{¶ 37} Because, pursuant to
{¶ 38} Thus, because a voluntary act is an essential element of the offense, the state constitutionally bears the burden of proving such element beyond a reasonable doubt.
{¶ 39} Therefore, having found that the state constitutionally bears the burden of proving beyond a reasonable doubt that the defendant engaged in a voluntary act, we cannot agree that the defendant must prove by a preponderance of the evidence that his or her actions were involuntary. Our review of Myers, Robinson, and LaFreniere does not compel a different conclusion. First, it is relevant that Myers was decided prior to the enactment in 1974 of
{¶ 40} Furthermore, we find that blackout resulting from PTSD is not “an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”
{¶ 41} Second, a defense challenging voluntariness does not involve evidence peculiarly within the knowledge of the accused. In most cases, the voluntariness of the defendant‘s actions is not an issue, as the presentation of evidence sufficient to prove the other elements of the crime is also sufficient to demonstrate that the defendant acted voluntarily. Thus, much like the defenses of alibi and mistake of fact, the defendant would necessarily have the burden of producing evidence sufficient to create a reasonable doubt as to the voluntariness of the defendant‘s actions. In response, the state is free to present its own evidence, including testimony from an expert witness, to carry its burden of proof that the defendant was acting voluntarily. Indeed, in the instant matter, the state subjected appellant‘s expert witness to cross-examination and presented testimony from its own expert witness relevant to the issue of the voluntariness of appellant‘s actions. Thus, we find that the defense of blackout does not involve evidence peculiarly within the knowledge of the accused.
{¶ 42} Here, the trial court instructed the jury that appellant bore the burden of establishing the defense of blackout, i.e. that appellant acted involuntarily, by a preponderance of the evidence as an affirmative defense. Because we have found that the state bears the burden of proving beyond a reasonable doubt that the defendant committed a voluntary act, we find that the trial court committed structural error. Sullivan at 281-82. Appellant‘s first assignment of error is sustained. As a result, we reverse appellant‘s conviction and remand this matter for further proceedings. Finally, we note that our holding in this case is limited to claims of involuntariness resulting from PTSD-induced blackout. See
{¶ 43} In his second assignment of error, appellant asserts the prosecutor committed misconduct during closing argument, violating appellant‘s due process right to a fair trial. In his third assignment of error, appellant asserts the cumulative effect of errors violated his due process right to a fair trial. In his fourth assignment of error, appellant asserts the trial court erred by omitting the word “unconscious” in the jury instructions. In his fifth assignment of error, appellant asserts the trial court erred by failing to give a curative instruction. Having sustained appellant‘s first assignment of error, appellant‘s remaining four assignments of error are rendered moot.
IV. Conclusion
{¶ 44} Having sustained appellant‘s first assignment of error and rendered moot appellant‘s remaining four assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter for further proceedings consistent with law and this decision.
Judgment reversed and cause remanded.
BRUNNER, J., concurs.
LUPER SCHUSTER, J., dissents.